By Dak Buoth,
August 28, 2020(Nyamilepedia) — On this day, 27th August, 2010, Kenyans promulgated a new constitution. At that time, the region and the world rejoices. Many patriotic Kenyans suffered and perished during the clamor for this new constitution. They did their parts and leave Kenya better than they found it. Today Kenyans from all walks of life are marking and or celebrating 10th anniversary of the Kenya constitution, 2010. Kenyans like us, are historical people.
They are the only ones in this region with constitution that has presidential terms limit. They deserve our appreciations and applauses for doing an exemplary job. When I was on the table writing this article, a young South Sudanese Boy in form three was watching the television where I was. He heard people talking on the constitution repeatedly in all channels. He saw a caption written ‘‘constitution @ 10” and then asked me: Is the Kenya constitution change after every ten years? First, i told him this is a good question. I told him they are celebrating ten years since it was passed on 27th August, 2020.
It’s like a birthday. They are marking the rebirth of their Nation. That constitution can be changed anytime for it is not permanent. I also told him what philosopher, Thomas Acquinas once said, when there is an article in the constitution that you don’t like, respect it while working toward changing it for if you begin disrespecting it, you will be punish for violating the law. I ended my responses by telling him this is what our people are fighting for in South Sudan because we don’t have good constitution. The transitional interim constitution, 2011 that we have was done to favor President Salva Kiir. More so nobody is willing to implement it as it is.
Earlier this week, several Legal pundits such as Dr. Willy Mutunga, Prof. PLO Lumumba, Prof. Makau Mutua, Prof. Githu Muigai, Dr. Otiende Amolo and other social commentators who took part in crafting this document begins taking us memory lane, assessing and analyzing the successes and challenges of this well-praised document. This constitution is people centered. And ordinary Kenyan citizens who are its custodians have civic responsibility to keep an eye on public service offices and its entire implementation processes.
In his 11th Presidential address on covid-19 on 26th, August 2020, President Uhuru Kenyatta stated that ‘‘this constitution has been hailed, the world-over, as one of the most progressive in the world. And this is because it is an embodiment of what a social contract between people of different origins and their government, should be.’’ This constitution is often referred to as one of the most progressive constitutions because it incorporates comprehensive bill of Rights with special emphasis on economic, social and cultural rights.
I happened to be in Nairobi the day it was launched in 2010. I took time to be among thousands of Kenyans who attended the promulgation ceremony. We agreed a day before with my colleagues the likes of John Nuor Biel and Machar Gatluok to witness the ceremony without fail.
The following day at about 4:00 am we woke up and by 5:30 am, we left the house for the venue. I went with comrade Chak Gatnyang Riek alias Wrong-side now fourth year International Relations Student at Cavendish University and former MCA Aspirant, Eric Oirere Deng from Kisii county. We left for Uhuru Park by 46 routes. Nuor and Machar came via Thika road now Thika Super high way from Kasarani estate.
Unfortunately, as soon as we alight at Serena hotel bus stop, a young police man behind us was knocked down and killed by speeding vehicle coming from the Nairobi Central Business District. It was my first time to see a person die of car accident, and I shivered a lot. I wondered why the driver was driving at high speed while seeing many people were crossing that busy road.
As we left the scene to go and look for place to sit in the crowd, I was still busy thinking of the decease. I believe Gatnyang and Oirere can remember this. As we leave his body behind, I soon turned and saluted him as a dedicated police officer who died in the course of his duty. To me, he was like a fallen soldier who was shot in the battle field.
From that day I heighten my respect for all police officers. I know as they are outside there trying to keep peace and maintain law and order, they are also facing a lot of challenges. It was at this very moment that I realized coming to attend this occasion was enormous sacrifice with high risks. I said I would have been killed here like that innocent police man. I thought and said, in this crowd and among this rowdy people anything can happen. But I didn’t regret for going to Uhuru Park, because our reason for attending this occasion was convincing to us. A day before the ceremony, we asked ourselves: if we cannot attend an occasion like this, what shall we say to our people when we repatriate to South Sudan? As a refugee and student, I knew that learning does not take place in class rooms only. So we went there to learn and to celebrate with Kenyans because we share their joy for this new constitution.
I know many South Sudanese in Kenya rarely attend public events for many reasons. Many fear attending public events because they are often targeted by pick pockets and thieves. In any country where thieves are rampant, foreigners are prone to attacks by criminals. Many thugs wrongly believe South Sudanese have more money. However, at some points, many could be right because some young south Sudanese are used to extravagancy. Usually, many of them appear as if they have a lot. But in real sense they have none in their pockets.
Of course, it’s undeniable that there are few people, sons and daughters of our corrupt army generals and political elites who move and drive with good cars in most Nairobi suburbs.
This tiny group has made all South Sudanese students, sons and daughters of peasants to be generalized as wealthy while most of them are paupers who live by hand to mouth.
On the day of the promulgation, many former and sitting heads of States such as Omar El Bashir of Sudan, Paul Kagame of Rwanda, Yoweri Museveni of Uganda, and John Kufor of Ghana were present at this rare occasion. I fondly recalled there was controversy over the invitation of President Bashir who was already indicted by the international criminal court in the Hague.
The leaders of the main opposition party, ODM and several Human Rights organizations didn’t want Bashir to attend the event instead they called for his arrest because Kenya is signatory to the Rome statute. The invitation of President Omar El bashir continued to elicit fierce debate at that time. He came to the venue accompanied by tourism minister, Najib Balala. When the crowd saw him coming, they booed him. We stood up and shouted at him saying arrest him, arrest. Then President, late Daniel Arab Moi was also booed by the crowd on this occasion. It was an interactive moment. We were able to see many leaders and dignitaries on that day.
In ten years, the implementation of this constitution like its making has not been a walk in the park. It is sad to know that this constitution has not been implemented to the letter and spirit. Thus Kenya now has constitution without constitutionalism, and this is major problem with Africa in general.
Renowned Kenyan legal academic, late Prof. Okoth Ogendo in his article titled constitution with constitutionalism: Reflections on African political paradox’’ written during the 200th anniversary of the American constitution, says African countries have many beautiful constitutions but what is lacking is constitutionalism, which is strict adherence to the principles of the constitution. Many constitutions have incorporate more Human Rights but little is done to safeguard and respect them.
In November 2016, James Gatdet Dak was deported from Nairobi to Juba against his will despite being recognized by UNHCR. And in January 2017, renowned South Sudanese Human Rights lawyer, Samuel Dong Luak, a registered refugee and Idris Aggri were kidnaped in Nairobi and subsequently killed in South Sudan.
These incidents caused panic among refugee community in Kenya. The 1951 refugee convention and the African Union treaty on refugees prohibited forceful return of a refugee to a place where his or her life and freedom would be threatened.
These deportation cases inflicted serious fear on many refugees in Kenya. As we mark or celebrate 10th years anniversary of this progressive constitution, Kenya should not continue violating international statutes that it ratified and recognized.
The Writer is the Chairman of Liech Community Association in Kenya; the views expressed here are his own, and he can be reached for comments via firstname.lastname@example.org
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